from the how-hard-did-they-work-to-make-it-this-bad? dept

This is not a surprise given the earlier leaks of what the EU Commission was cooking up for a copyright reform package, but the
end result is here and it's a complete disaster for everyone. And I do mean everyone. Some will argue that it's a gift to Hollywood and legacy copyright interests -- and there's an argument that that's the case. But the reality is that this proposal is so bad that it will end up doing massive harm to everyone. It will clearly harm independent creators and the innovative platforms that they rely on. And, because those platforms have become so important to even the legacy entertainment industry, it will harm them too. And, worst of all, it will harm the public greatly. It's difficult to see how this proposal will benefit anyone, other than maybe some lawyers.

Not surprisingly, the EU Commission is playing up the fact that this package does knock down some geoblocking in setting up more of a "single market" for digital content, but after Hollywood started freaking out about it, that proposal got watered down so much that plenty of content will still be geo-blocked. And there's so much other stuff in here that's just really, really bad. As expected, it includes a ridiculous ancillary copyright scheme, which should really just be called the "Google tax" for linking to copyright-covered content.

The proposal does away with the liability limitations for platforms, effectively requiring any tech platform that allows user-generated/user-uploaded content to build or license their very own ContentID system. This is ridiculous. If the idea was to punish Google, this will do the opposite. Basically no startup will be able to afford this, and it will just lock in platforms like YouTube as the only option for content creators wishing to upload video. Protecting intermediary liability has been shown, time and time again, to enable new innovation and also to enable greater creativity and free speech -- and the EU Commission basically just tossed it in the garbage because some Hollywood interests think (incorrectly) that internet companies "abuse" the protections.

The EU Commission barely hides the fact that they're doing this to try to protect legacy industries while punishing innovative ones:

The Copyright Directive aims to reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube or Dailymotion. Such platforms will have an obligation to deploy effective means such as technology to automatically detect songs or audiovisual works which right holders have identified and agreed with the platforms either to authorise or remove.

Newspapers, magazines and other press publications have benefited from the shift from print to digital and online services like social media and news aggregators. It has led to broader audiences, but it has also impacted advertising revenue and made the licensing and enforcement of the rights in these publications increasingly difficult.The Commission proposes to introduce a new related right for publishers, similar to the right that already exists under EU law for film producers, record (phonogram) producers and other players in the creative industries like broadcasters.

The new right recognises the important role press publishers play in investing in and creating quality journalistic content, which is essential for citizens' access to knowledge in our democratic societies. As they will be legally recognised as right holders for the very first time they will be in a better position when they negotiate the use of their content with online services using or enabling access to it, and better able to fight piracy. This approach will give all players a clear legal framework when licensing content for digital uses, and help the development of innovative business models for the benefit of consumers.

The proposal also includes a new "exception" for text and data mining -- which sounds like it could be a good thing, but even it was designed in a manner to "protect" legacy publishers, and which will seriously harm smaller innovators and researchers. The exception is only limited to those engaging in scientific research, meaning that any other kind of research that involves data mining is at risk in the EU. Basically, the EU just gave away that entire important and growing innovative industry. Almost all of the major work in AI and machine learning these days involves data mining, and the EU just told all those companies to go find a new home.

Just looking around at various European-based organizations, they're pretty much agreed that this is a complete disaster. Here's Communia, saying "this is not how you fix copyright."

Today’s proposal buries the hope for a more modern, technologically neutral and flexible copyright framework that the Commission had hinted at in its initial plans for the Digital Single Market. The proposal largely ignores crucial changes to copyright that would have benefitted consumers, users, educators, startups, and cultural heritage institutions. It also abandons the idea of a digital single market that allows all Europeans the same rights to access knowledge and culture. Finally, it completely ignores the importance of protecting and expanding the public domain.

“We need a copyright reform to make Europe fit for the 21st century. We now have a proposal that is poison for European’s free speech, poison for European business and poison for creativity”, said Joe McNamee, Executive Director of European Digital Rights. “It could not conceivably be worse.”

It lacks ambition and instead reads like a defence of old business models. We need a real copyright revolution instead. Publishers might have legitimate concerns about their decreasing revenues, but a retrograde reform of copyright law is not the solution.

So the EU Commission has taken the exact wrong approach. It's one that's almost entirely about looking backwards and "protecting" old ways of doing business, rather than looking forward, and looking at what benefits the public, creators and innovators the most. If this proposal actually gets traction, it will be a complete disaster for the EU innovative community. Hopefully, Europeans speak out, vocally, about what a complete disaster this would be.

from the to-promote-the-progress-of-science dept

Last week, we wrote about a terrible copyright ruling from the Court of Justice of the EU, which basically says that any for-profit entity that links to infringing material can be held liable for direct infringement, as the "for-profit" nature of the work is seen as evidence that they knew or should have known the work was infringing. We discussed the problems with this standard in our post, and there's been a lot of commentary on what this will mean for Europe -- with a variety of viewpoints being expressed. One really interesting set of concerns comes from Egon Willighagen, from Maastricht University, noting what a total and complete mess this is going to be for scientists, who rarely consider the copyright status of various data as databases they rely on are built up:

Now, realize that in many European Commission funded projects, with multiple partners, sharing IP is non-trivial, ownership even less (just think about why traditional publishers require you to reassign copyright to them! BTW, never do that!), etc, etc. A lot of funding actually goes to small and medium sized companies, who are really not waiting for more complex law, nor more administrative work.

A second realization is that few scientists understand or want to understand copyright law. The result is hundreds of scholarly databases which do not define who owns the data, nor under what conditions you are allowed to reuse it, or share, or reshare, or modify. Yet scientists do. So, not only do these database often not specify the copyright/license/waiver (CLW) information, the certainly don't really tell you how they populated their database. E.g. how much they copied from other websites, under the assumption that knowledge is free. Sadly, database content is not. Often you don't even need wonder about it, as it is evident or even proudly said they used data from another database. Did they ask permission for that? Can you easily look that up? Because you are now only allowed to link to that database until you figured out if they data, because of the above quoted argument. And believe me, that is not cheap.

Combine that, and you have this recipe for disaster.

A recipe for disaster indeed.

This is, of course, not the first time we've noted the problems of intellectual property in the science world. From various journals locking up research to the rise of patents scaring off researchers from sharing data, intellectual property keeps getting in the way of science, rather than supporting it. And that's extremely unfortunate. I mean, after all, in the US specifically, the Constitution specifically says that copyrights and patents are supposed to be about "promoting the progress of science and the useful arts."

Over and over again, though, we see that the law has been twisted and distorted and extended and expanded in such a way that is designed to protect a very narrow set of interests, at the expense of many others, including the public who would benefit from greater sharing and collaboration and open flow of data among scientific researchers. Having the CJEU make things worse in Europe isn't going to help Europe compete -- and, unfortunately, it does not look like those in Europe looking to update its copyright laws understand any of this yet.

from the that's-not-how-this-works dept

Last year, we talked about an important copyright case in the EU regarding whether or not linking to infringing material was, in itself, infringing. The case involved a blogger in the Netherlands, Geen Stijl News ("GS Media") linking to some pre-publication Playboy photos. There had been an earlier case, the Svensson case where the European Court of Justice got things right with regards to whether or not hyperlinks could be infringing, but there were some questions left open in that ruling. The court in the Svensson case found that linking to authorized content wasn't infringing. But what about unauthorized content?

And now we have the ruling and it's not very good. Some are trying to spin it as a good ruling, because it basically says that if the link is not for profit, then it's not infringing, but the worrisome part is that if the link is considered "for profit" then it can be direct infringement. Basically, the court tries to split the baby here. It notes concerns that many people had about how posting a mere link to content could be infringement, in that many times those posting the link will have no idea if the original content is authorized. But rather than actually deal with that specific issue, it just basically said "well, if it's a for profit effort, then they can afford to figure out if the content is authorized."

when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

Some are celebrating the flip side, which says that if the linking is not for profit and without knowledge that the work is infringing, then it's not infringing, but even that is troubling. Here's what the court says for the "not for profit" linking:

For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.

Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.

But what the hell does all that mean in practice? Well, that's a complete mess. First of all, as we've been discussing for many, many, many years, drawing the line between "commercial" and "non-commercial" is not nearly as easy as it seems -- and it's basically the same for "for profit" and "not for profit" in the EU's new standard. Just last week we wrote about yet another legal dispute over that exact fuzzy boundary. In an age where anyone can put ads on their site, or use social media to promote their own work or business, how do you determine what's for profit? It's not hard to see how a copyright holder may, for example, point to someone linking to an unauthorized copy of their work and then point to a tweet promoting their work, and say that "well this person uses social media for profit, so this link is infringing."

And, of course, it's even worse for aggregators, search engines and the media. All of those will be considered for profit, so any link to infringing content may now be considered infringing itself. That's... really bad for the internet in Europe. You can see why the Court of Justice tried to split the baby here, but you should remember that splitting the baby isn't a good result. It's designed to threaten to kill the baby to flush out a better result. In this case, one hopes that the end result of this dangerous ruling will flush out an improved copyright law in the EU that doesn't make links infringing. Instead, we seem likely to be getting the exact opposite.

from the double-irish-with-a-dutch-sandwich dept

For quite some time now, we've seen EU regulators talk fairly openly about their desires to harm American internet companies, mostly in a misguided attempt to boost local European companies (and to collect more money). It's why we keep hearing about weird, carefully targeted regulations designed to pump up how much money companies like Google, Apple and others pay.

At the same time, parts of Europe (Ireland, in particular) have been doing basically everything they can think of to woo American tech companies. Ireland has successfully offered ridiculously friendly policies, leading many large internet companies to set up offices in Dublin, and then use that as the place where they "recognize" all their revenue. There are a variety of tax dodges employed here, which go by fun names like Dutch Sandwich and Double Irish.

US Companies have been doing this for many years, and while it (frankly) looks pretty sleazy, they do seem to mostly play by the rules. We can argue over whether or not the tax breaks they get are worth it, but the whole thing just feels sketchy in that it's clearly playing some jurisdictional games to get lower tax rates. Of course, there's also been another looming issue on all of this, which is that these giant internet companies have been pushing heavily to be able to get the cash that they've been accumulating in Ireland back into the US, without then having to pay all those taxes on it. So they've been pushing for some sort of "amnesty" period or "holiday" where they can bring the cash back in.

Frankly, the whole thing is a little ridiculous. With so much money on the line, you can see why these companies play games, but that still doesn't make it right. The internet giants often seem to put this issue at the top of their lobbying priority list, and that's unfortunate. The thing that I like about Silicon Valley is that much of the industry comes from actually creating new and useful things and building stuff up. Playing tax dodging games is the opposite of that. It's playing political games and it feels super counterproductive.

Apple Inc. was ordered to pay as much as 13 billion euros ($14.5 billion) plus interest after the European Commission said Ireland illegally slashed the iPhone maker’s tax bill, in a record crackdown on fiscal loopholes that also risks inflaming tensions with the U.S.

The world’s richest company benefited from selective tax treatment that gave it an unfair advantage over other businesses, the European Union regulator said Tuesday. It’s the largest tax penalty in a three-year campaign against corporate tax avoidance. Apple and Ireland both vowed to fight the decision in the EU courts.

No one comes out of this looking very good. The tech companies playing tax haven games look bad -- even if you think the tax rate is too high and they should be trying to get it lowered. The EU government looks typically jealous and petty towards American companies. And of course, people are already talking about a possible trade war over this issue.

Frankly, I'd much rather tech companies be focused on innovation in their products, rather than in their tax strategies.

from the gotta-make-it-as-difficult-as-possible dept

Okay, we have some really serious concerns about the absolute mess of a draft copyright reform proposal that was leaked via EU regulators. The whole thing is basically a giant handout to legacy entertainment companies, pushing for things like taxing Google and other aggregators, and generally ignoring what's best for the public.

But apparently there's one single part of the plan that the entertainment guys don't like: the fact that a big part of the proposal is to knock out geoblocking, to create this "digital single market." To hear Hollywood whine about this, you'd think it was the equivalent of forcibly making all their content available via BitTorrent.

In a letter to the presidents of the European Commission, European Council and European Parliament, they warn that the EU's plans to help make more films and TV shows available online across borders will have "severe negative impacts on our industry and incentives to invest, which would stunt economic growth and innovation for years to come."

To which the only proper response should be: "Oh, for fuck's sake, get over yourself."

You have to be one seriously fucked up industry to believe that a plan to bring down barriers and that makes it easier for the public to access your work completely legally will somehow have "severe negative impacts." At the very least, it certainly gives you an idea of what the MPAA thinks of the current suckers who are happily paying them to watch movies.

A Digital Single Market makes a ton of sense. Geoblocking is the bane of many people's existence, especially in Europe where so much content is blocked. You'd think that Hollywood would be happy to decrease barriers and open up greater opportunities to expand markets. But it often feels like "logical" and the "MPAA" are consistently at odds with one another. Opening up more markets creates better experiences and more consumers. But the MPAA is so focused on control that it doesn't realize that it's working against its own interests here.

And, really, given everything else that's in the bill, it seems like the least Hollywood studios could do is not attack the one good thing about this whole plan, the lowering of market barriers.

from the actually-listening-to-the-people dept

As we noted last October, the European Union passed net neutrality rules that not only don't really protect net neutrality, but actually give ISPs across the EU member countries the green light to violate net neutrality consistently -- just as long as ISPs are relatively clever about it. Just like the original, overturned 2010 net neutrality rules in the States, Europe's new rules (which took effect April 30) are packed with all manner of loopholes giving exemption for "specialized services" and "class-based discrimination," as well as giving the green light for zero rating.

Fortunately, the European Union's Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules. Under heavy pressure from net neutrality advocates overseas, the BEREC's final guidelines have been published and they're notably better than many people predicted. Much of the worst-offending loophole language has been trimmed back, despite earlier threats by European wireless providers that they'd withhold fifth-generation (5G) upgrades if the guidelines toughened up the rules (a common, empty bluff in telecom).

Much of the worrying language carving out tractor-trailer-sized loopholes for "specialized services," or "class-based discrimination," has been either pared back or clarified. The guidelines also strongly encourage EU member state governments to avoid letting ISPs block users looking to use their wireless phones as modems (aka "tethering"). BEREC also comes down harder on exempting some content from usage caps (aka "zero rating"), because as we're seeing in the states (where regulators are actively encouraging the practice) it can be very easily used to try and hinder services that compete with an ISPs own offerings:

"...The zero price applied to the data traffic of the zero-rated music application creates an economic incentive to use that music application instead of competing ones. The effects of such a practice applied to a specific application are more likely to “undermine the essence of the endusers' rights” or lead to circumstances where “end-users’ choice is materially reduced in practice” (Recital 7) than when it is applied to an entire category of applications.

While an indisputably big win for net neutrality advocates (this item saw the biggest public feedback in the history of BEREC consultations), these are still guidelines, and actual rules and enforcement may still vary significantly among EU member states. Upon initial read there's still numerous instances where bad behavior is still allowed if it's justified (often flimsily) by the ISP as necessary for network health and security, a concept we've seen consistently abused here in the States. The phantom congestion bogeyman has long been useful to justify anti-competitive behavior in telecom markets worldwide.

In short this is a promising step forward for European net neutrality advocates, but just as in the States, net neutrality advocates need to be wary of thinking the fight is over. These are just cornerstone victories in a battle that will never truly end thanks to incumbent ISPs that will never stop looking for new, creative ways to abuse the lack of competition the broadband last mile. The less broadband competition in a market, the more intense the fight.

from the that's-not-the-role-of-copyright dept

Well, here we go again with the bad EU copyright proposals. Just a few days ago, Mozilla actually launched a petition to call on the EU to update its copyright laws for the 21st century, to make it "so we can tinker, create, share, and learn on the internet." Apparently the EU's answer to this is "Fuck You!"

According to a leaked draft of the EU Commission's plan to "modernize" copyright, the plan really seems focused on coming up with new ways to tax successful internet companies, like Google, to prop up other companies and industries that have failed to adapt. Apparently, the EU Commission thinks that copyright should be a tool to punish innovation and to reward those who have refused to innovate.

The leaked draft talks repeatedly about this silly idea of a "value gap." Just a few weeks ago we discussed why the "value gap" is a misleading talking point. It's being used by companies that didn't innovate to try to guarantee a business model, with that model being "have the government force successful companies to subsidize us, because we didn't adapt to the current market." And this draft is full of that kind of thinking.

The draft also continues to weigh "the impact" of various proposals on different stake holders. For example, it notes whether different proposals will have a "positive, neutral, or negative" impact on rightsholders, internet services, consumers and "fundamental rights." While it's nice that they include the "fundamental rights" (and the public -- who, it should be noted, are more than just "consumers") it feels like they're trying to set up proposals again that are sort of "balancing" all of these interests, rather than finding the one that maximizes overall utility. In fact, it's quite troubling that they seem to think that anything that directly expands copyright automatically benefits "rightsholders." We've seen how that's not true at all. Greater freedom to remix, reuse and build on the works of others allow everyday people to become creators themselves more easily. And saddling internet platforms also harms many, many content creators who are only able to create, publicize, distribute, connect and monetize because of these new platforms. But the draft doesn't seem to take much of that into account -- or sort of hand-waves it away.

Even the way the draft describes "problems" show that it's biased at looking for ways to prop up old industries:

In particular intervention at EU level is expected, because of its scale, to
strengthen publishers bargaining powers in a more effective way than it has happened under
national measures such as the "ancillary rights" adopted in DE and ES, where major online
service providers either closed down their news aggregation services (ES) or concluded free
licences for the use of publishers' content (DE) which did not generate any remuneration for
publishers so far. Moreover the related right granted to press publishers under this option
would be different from the ES law insofar as it would be an exclusive right and not an
unwaivable compensation: this would leave news publishers a greater margin for manoeuvre
to negotiate different types of agreements with service providers and is therefore expected to
be more effective for them in the long run (notably as it will allow press publishers to develop
new business models in a flexible way).

Basically, so much is looking at how can we prop up newspaper businesses by basically forcing Google to pay them to link to them. Even more ridiculously, the report says that basically pushing Google to pay to link to news will "benefit consumers" because it will mean more "high quality" news. That seems like a dubious assumption.

Consumers reap considerable benefits from news aggregators and social media news
providers. At the same time they also benefit from high quality newspaper content feeding
these channels of consumption. By fostering the production of high quality news content, this
option is expected to have a positive impact on consumers. Better market conditions for the
news publishing industry could give rise to the development of innovative offers for the
digital distribution of news content, with larger catalogues and more choice. Digital
subscription of newspapers and magazines are expected to be further developed, which will
be particularly beneficial to consumers given the decline of print products.

That seems like the EU Commission is only thinking a single step out, and not any further about how business models may develop. Doing this will also lock in Google as the dominant player and not allow newer, better, more innovative startups to enter the market without first having to raise significant amounts of capital. The report notes that consumer groups disagree with the assumption that consumers will benefit under such a plan, but the entirety of the Commissions reason for this is "well, this is different from the Spanish law that made Google News shut down."

All in all, this looks like (unfortunately typical for Europe) plan written by bureaucrats looking to basically minimize the number of people who are upset, rather than creating the best actual overall plan. As a result, the proposals look to be a mess, that will almost certainly harm innovation and creativity in Europe.

from the net-neutrality-redux dept

Earlier this summer, the Body of European Regulators of Electronic
Communications (BEREC) took in around a half million public comments on its
draft guidelines for member states on implementing end user protections for fixed
and mobile Internet connections. The largest telecoms in Europe are lobbying
hard for weakened interpretations of the so-called “net neutrality” Regulation
passed late last year, which also covers data roaming and the EU Digital Single
Market.

A few weeks ago, the largest telecom ISPs issued a 5G Manifesto in which they
threatened not to invest in 5G wireless networks unless BEREC waters down its
guidelines for enforcement of open Internet access.

Fortunately for American consumers, startup entrepreneurs and small
businesses, the FCC was not swayed by similar ISP threats about how common
carrier law would kill network investment here. And so even with U.S. open
Internet law now firmly in place after a recent court decision, Verizon has
announced significant continued investment in 5G networks and field testing in
multiple locations.

But carriers in Europe, that don’t face competition from cable broadband
providers like American phone company ISPs do, enjoy even stronger market
dominance that allows them to intimidate regulators attempting to defend end
user rights. The current generation of online startups needs to be able to count
on the same open Internet connectivity that the most popular global platforms
enjoyed in their infancy a decade or two ago. Only now it’s a battle against
corporate lobbyists to get it.

In recognition of this opposition, over one hundred founders of European tech
companies and startups along with their international investors and trade groups
signed an open letter to underscore the critical importance of BEREC’s upcoming
action to innovation and job-creating growth in the digital economy. They made it
clear that if telecom ISPs are able to manipulate and subsidize data plan costs
for users of established big name platforms, they will put up new barriers to
online market entry. Earlier up front capital will be required in a “pay to play”
environment, and those entrepreneurs who can’t pay up will find it much harder
to be discovered online, scale up and compete for business. No such price of
admission ever held back American tech startups, although many of their
investors had grown very uneasy prior to the FCC’s decisive action in early 2015.

While BEREC has displayed a comprehensive understanding of real new threats
to open Internet access, several loopholes in the draft guidelines must be closed
if Europeans expect effective safeguards to protect their Internet access service
from commercial interference. Specifically ISPs should not be allowed to use the
“specialized services” exception to circumvent the ban on charging online content
and application providers for priority transmission on the public Internet.

Secondly, given provisions in the Regulation prohibiting discriminatory
commercial practices, BEREC should ban zero rating schemes that favor certain
online platforms by exempting them from data caps. Zero rating is as harmful to
startups and other competing platforms as technical network discrimination. Zero
rating of an ISP’s own content is particularly anticompetitive. Finally network
traffic management should be application-agnostic whenever possible. ISPs
should not favor some classes of traffic and delay others, such as encrypted
content, except under unusual circumstances.

Open Internet access law supports a digital innovation economy in which all
online content is equally accessible regardless of the identity of one’s ISP or its
business deals with online platforms. In the US, all zero rating is not banned, but
the FCC is actively investigating sponsored data and zero rating plans for
compliance with its open Internet order. In response to the EU Regulation, the
Netherlands already has banned zero rating.

All ISPs have a natural economic incentive to partner with or acquire popular
content providers in order to maximize monetization of their network facilities. As
a practical matter, only the big ones like Comcast (NBC, Netflix) and Verizon
(Aol, Yahoo!) can pull it off, but they can really change the game for others.

Sweden uniquely is less concerned about commercial interference with Internet
access because the Swedish government itself built and owns the enviable
universal fiber optic Internet access network there. Use of that infrastructure is
licensed to dozens of competing IT providers, and Stockholm is beginning to
resemble a Scandinavian Silicon Valley.

Elsewhere in Europe though, ISPs are in business to provide sufficient capacity
to transmit the data traffic of all their customers without “fast lanes” for some and
interruptions and buffering for everybody else. Startups in Amsterdam, Berlin,
Barcelona, Bratislava, Cyprus, Dublin, Lisbon, Ljubljana, Paris, Riga and Vienna
are among their customers. So far the Dutch are in the lead in terms of
proactively implementing the Regulation’s open Internet access provisions, which
took effect this past spring.

While BEREC properly focuses on shielding consumers from the downsides of
ISP commercial discrimination, it should also tailor its guidelines for the sake of
Europe’s tech startups looking to attract investment funding and access global
markets online. Other policymakers around the world will be watching whatever
the EU decides at the end of August about enforcement of Internet access rights.

from the sounds-like-a-plan dept

The EU's "Cookie Law" is a complete joke and waste of time. An attempt to regulate privacy in the EU, all it's really served to do is annoy millions of internet users with little pop up notices about cookie practices that everyone just clicks through to get to the content they want to read. The EU at least recognizes some of the problems with the law and is working on a rewrite... and apparently there's an interesting element that may be included in it: banning encryption backdoors. That's via a new report from European Data Protection Supervisor (EDPS) Giovanni Buttarelli, who was put in charge of reviewing the EU's ePrivacy Directive to make it comply with the new General Data Protection Regulation (GDPR) that is set to go into effect in May of 2018. The key bit:

The new rules should also clearly allow users to use end-to-end encryption (without 'backdoors') to protect their electronic communications.

Decryption, reverse engineering or monitoring of communications protected by encryption should be prohibited.

In addition, the use of end-to-end encryption should also be encouraged and when necessary, mandated, in accordance with the principle of data protection by design.

To be clear, this actually seems like it may go too far. There are plenty of situations where it seems completely reasonable for law enforcement to use other means to figure out ways to decrypt encrypted communications. Arguing that it should be completely outlawed seems a bit extreme. But blocking backdoors does seem like a good idea. The report also says that the use of end-to-end encryption should be encouraged to the point of being mandated in some cases:

In addition, the use of end-to-end encryption should also be encouraged and when necessary, mandated, in accordance with the principle of data protection by design. In this context the EDPS also recommends that the Commission consider measures to encourage development of technical standards on encryption, also in support of the revised security requirements in the GDPR.

The EDPS further recommends that the new legal instrument for ePrivacy specifically prohibit encryption providers, communications service providers and all other organisations (at all levels of the supply chain) from allowing or facilitating 'back-doors'.

Conceptually, this sounds good, but the implementation matters. Mandating encryption seems to be going a bit far. While I tend to think it makes sense for much more widespread use of encryption, it's not clear why the government needs to get involved here at all. And that includes in the development of such standards. In fact, as we've seen in the past, when the government gets involved in creating encryption standards, that seems to be where the intelligence community can slip in their backdoors.

Still, this is certainly an interesting development. Of course, it would also conflict with the UK's Snooper's Charter ("Investigatory Powers Act") which mandates backdoors for encryption. Though, to be fair, by the time the new rules go into practice, perhaps the UK will no longer be a part of the EU.

from the loopholes-and-hula-hoops dept

Europe only has a few days left to ensure that its member countries are actually protected by real net neutrality rules. As we've been discussing, back in October the European Union passed net neutrality rules, but they were so packed with loopholes to not only be useful, but actively harmful in that they effectively legalize net neutrality violations by large telecom operators. The rules carve out tractor-trailer-sized loopholes for "specialized services" and "class-based discrimination," as well as giving the green light for zero rating, letting European ISPs trample net neutrality -- just so long as they're clever enough about it.

In short, the EU's net neutrality rules are in many ways worse than no rules at all. But there's still a change to make things right.

While the rules technically took effect April 30 (after much self-congratulatory back patting), the European Union's Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules, potentially providing them with significantly more teeth than they have now. With four days left for the public to comment (as of the writing of this post), Europe's net neutrality advocates have banded together to urge EU citizens to contact their representatives and demand they close these ISP-lobbyist crafted loopholes.

Hoping to galvanize public support, Sir Tim Berners-Lee, Barbara van Schewick, and Larry Lessig have penned a collective letter to European citizens urging them to pressure their constituents. The letter mirrors previous concerns that the rules won't be worth much unless they're changed to prohibit exceptions allowing "fast lanes," discrimination against specific classes of traffic (like BitTorrent), and the potential paid prioritization of select “specialized” services. These loopholes let ISPs give preferential treatment to select types of content or services, providing they offer a rotating crop of faux-technical justifications that sound convincing.

The letter also urges the EU to follow India, Chile, The Netherlands, and Japan in banning "zero rating," or the exemption of select content from usage caps:

"Like fast lanes, zero-rating lets carriers pick winners and losers by making certain apps more attractive than others. And like fast lanes, zero-rating hurts users, innovation, competition, and creative expression. In advanced economies like those in the European Union, there is no argument for zero-rating as a potential onramp to the Internet for first-time users.

The draft guidelines acknowledge that zero-rating can be harmful, but they leave it to national regulators to evaluate zero-rating plans on a case-by-case basis. Letting national regulators address zero-rating case-by-case disadvantages Internet users, start-ups, and small businesses that do not have the time or resources to defend themselves against discriminatory zero-rating before 28 different regulators."

Here in the States the FCC decided to not ban zero rating and follow this "case by case" enforcement, which so far has simply resulted in no serious enforcement whatsoever, opening the door ever wider to the kind of pay-to-play lopsided business arrangements net neutrality rules are supposed to prevet. Of course European ISPs have been busy too, last week falling back on the old, bunk industry argument that if regulators actually do their job and protect consumers and small businesses from entrenched telecom monopolies, wireless carriers won't be able to invest in next-generation networks.